Persons, also known as claims, claims or economic-financial rebalancing studies , are formal compensation requests presented by one of the contracts of the contract usually the contractor when there is an imbalance in relation to the initially agreed conditions.
These imbalances can be caused by several factors, whose essence is related to impacts on costs, deadlines and scope of the work. The formulation of a claim must be anchored in concrete, documented and legally sustainable facts. The main reasons for elections include:
- Project or scope changes initially defined
- Delays caused by the contractor or by third parties
- Access restrictions or delays in the release of the flowerbed
- Extreme climatic problems not foreseen
- Change in input prices
- Inflationary variations
- Legislative or regulatory changes
- Errors or omissions in projects provided
In short, the purpose of the claims is to restore the economic and financial balance of the contract, preventing one of the parties from arising from damage caused by factors alien to its responsibility.
PURCHASE OF PLATES: FUNDAMENTAL STEPS
The elaboration of an effective claim requires technical clarity, contractual knowledge and legal ability. A well -structured election document may avoid more serious disputes, and is often resolved in the negotiation phase.
Detailed contractual analysis
The first step in preparing a claim is the thorough reading of the contract, identifying risk clauses, responsibilities of each party and procedures established for contractual modifications. Often, the contract itself defines the format, deadline and requirements for submission of claims.
Cause Identification and Direct Effects
It is crucial to identify the event causing the imbalance and to point out its direct impact on the execution of the work. The causal cause or causal link must be clearly demonstrated. It is not enough just to claim changes or delays; It is indispensable to show how the event affected deadlines, costs or resources involved.
Documentary Collection and Organization
Documentation is the backbone of a claim. Among the main documents used are:
- Contract and its attachments
- Technical and commercial proposal
- Service orders and formalized changes
- Photographic records
- Work reports
- Quality System Documents
- Correspondences and emails exchanged between the parties
- Meteorology Bulletins (in case of weather)
- Contract schedules (base line + impact schedule)
- Cost spreadsheets and analytical budget
The better documented and demonstrated the causal link, the greater the chance of success in the request.
Quantification and Formulation of the Order
After proving the event and the impacts, it is necessary to quantify the amounts due or the deadlines that must be adjusted. This may include:
- Adequacy in the value of the contract
- Extension of the execution period
- Payment of indirect costs
- Compensation for outgoing profit
All calculation must be technically justified and according to market practices or criteria contractually established.
CLASS MANAGEMENT: Strategic decisions and effective communication
More than elaborating specific elections, the ideal is to structure a policy of prevention and early solution of eventual claims within the projects. For this, some preventive and strategic practices must be adopted.
Establishment of a manager
Large works benefit from the appointment of a manager responsible for the contractual administration area, with a technical and legal profile. Among his attributions are:
- Constant monitoring of contractual deviations;
- Continuous monitoring of the economic and financial balance;
- Continuous and strategic record of events;
- Interface with the teams of the work (planning, mobilization, budget, QSMR and others);
- Institutional communication with the contractor about any claims;
- Preparation, formal submission and negotiation of requests.
Regular and strategic communication between contractor and contractor
When necessary the presentation of claims, the success, most of them have a history of formalized, respectful and objective communications.
Communication must be strategic and timely, with a routine of alignment meetings, sending formal communications and registration in minutes are practices that avoid surprises at the end of the contract and increase the chances of friendly resolution.
Base line control and work indicators
The initial contract should never be treated as a static item. Monitoring should be continuous of the schedule, scope and costs.
Indicators such as deviation of planned deadline x executed, additional costs by project change and number of reprogramming are fundamental to detect causes of imbalance in advance.
ALTERNATIVES FOR CONFLICT RESOLUTION
Despite the importance of claims as negotiation tools, the contractor does not always accept the arguments presented immediately. When this occurs, there are alternative paths aimed at solving the impasse without necessarily using the judiciary.
Direct negotiation
The most common and less litigious medium. The parties negotiate financial or term adjustments based on the claim presented and the documentary justifications brought.
Mediation and dispute resolution committees
Some contracts, mainly public infrastructure works, already provide for impartial technical committees to analyze the claims. It is also possible to resort to mediation, with the support of external facilitator.
DRBS (dispute resolution boards)
Also in some contracts, the DRB is foreseen which is an extrajudicial and preventive mechanism of conflict resolution, consisting of an independent group of experts (usually three) with technical, legal or contractual knowledge. The committee is formed early in the contract and follows the progress of the work, with periodic meetings and visits to the flowerbed, to stay up to date on the project.
Arbitration or Judicial Litigation
If the friendly roads are exhausted, the parties remain to resort to arbitration (if contractually foreseen) or the common justice. Although more costly and time consuming, these processes are often inevitable when positions are crystallized.
Good practices to avoid the judicialization of claims
Although certain claims can climb to legal disputes, it is consensus that prevention is the best way. Next, see good practices that dramatically decrease the occurrence of irreversible conflicts:
- Objective contracts, with scope clauses, responsibility for interference and procedures for claims;
- Clarity of contractual conditions by those involved;
- Continuous and strategic monitoring of the main contract indicators;
- Performing additional services only by formalizing additives;
- Careful record of all the project stages, from planning to delivery;
- Collaborative work between the parts;
- Projects delivered with quality and within the agreed deadline;
- Release of areas in a timely manner;
- Team training regarding contractual rights and duties;
- Risk Planning and Response Plan for unforeseen events.
When is a claim indicative of mismanagement?
It is important to highlight that it is not the existence of claims itself that signals failures in the project, but the frequency, quantity and character of the claims presented. When these requests are recurrent, little grounded or represent high percentages in relation to the contract, there may be:
- Initial flawed planning;
- Hiring without technical diligence;
- Inexperience in scope definition;
- Misconception of hiring.
Monitoring these indicators allows you to detect and correct routes throughout the execution of the work.
The power of the contractual administration well done
By adopting transparent, technical and anticipatory practices, it is possible to avoid claims and treat potential conflicts in a consensual and timely manner.
With proper support, either through a dedicated manager, a specialized technical advice or clear control methodologies, contractors and contractors gain more security and fluidity in the execution of contracts, ensuring that the unforeseen events of the work do not compromise their feasibility.
With Exxata, we reduce the uncertainties in each contract
At Exxata , we developed a strategic expertise in managing and solving. We operate with technical, specialized accuracy and focus on preventing disputes, ensuring that each project advances with clarity, responsibility and contractual security. Count on our experience to protect your work and investment.
